[Federal Register Volume 82, Number 143 (Thursday, July 27, 2017)]
[Notices]
[Pages 34977-34978]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-15780]
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DEPARTMENT OF JUSTICE
Notice of Lodging of Proposed Consent Decree Under the Clean Air
Act
On July 20, 2017, the Department of Justice lodged a proposed
Consent Decree with the United States District Court for the District
of Columbia in the lawsuit entitled United States v. Harley-Davidson,
Inc., et al., Civil Action No. 1:16-cv-01687.
The United States' Complaint, filed on August 18, 2016, Dkt. Nos.
1, 4, alleges that Harley-Davidson, Inc. (and three related companies)
manufactured and sold over 339,392 after-market devices (known as
``Super Tuners'' and used with Harley-Davidson motorcycles) in
violation of the Clean Air Act prohibition on the manufacture or sale
of devices that defeat the functioning of the motorcycles' certified
emissions control system. The Complaint also alleges, relatedly, that
Defendants violated the provision of the Act that prohibits any person
from removing or rendering inoperative a motor vehicle's certified
emissions control system and from causing such ``tampering.'' Finally,
the Complaint alleges that Defendants manufactured and sold more than
12,000 motorcycles from model years 2006, 2007, and 2008 that were not
certified by EPA as required by the Clean Air Act.
The Consent Decree requires Defendants to stop selling the illegal
tuners in the United States by August 23, 2016. Defendants will also
offer to buy back all such tuners in stock at Harley-Davidson
dealerships across the country and destroy them. The Decree requires
Defendants to obtain an Executive Order from the California Air
Resources Board (CARB) for any tuners Defendants sell in the United
States in the future. These Executive Orders (EOs) will demonstrate
that the CARB-certified tuners do not cause Defendants' motorcycles to
exceed the EPA-certified emissions limits. Defendants must also conduct
tests on motorcycles that have been tuned with the EO-certified tuners
and provide the results to EPA to ensure that their motorcycles remain
in compliance with EPA emissions requirements. In addition, for any
uncertified Super Tuners that Defendants sell outside the United States
in the future, they must label them as not for use in the United
States.
Under the Consent Decree, Defendants must also ensure that all of
their future motorcycle models intended for sale in the United States
are certified by EPA.
Finally, Defendants will pay a civil penalty of $12 million.
The Consent Decree lodged with the Court on July 20 is identical to
a Consent Decree lodged with this Court on August 18, 2016, Dkt. 2,
except that the Consent Decree lodged on July 20 (and on which comment
is now being sought) does not include the requirement in the original
Consent Decree for Defendants to ``fund a program'' (described in
Appendix A of the original Consent Decree) that required Defendants to
pay a third-party organization to mitigate emissions of hydrocarbons
and oxides of nitrogen in the northeastern United States by replacing
old, higher polluting woodstoves with emissions-certified woodstoves
(``mitigation project''). As explained briefly below, certain new
developments led the United States and Defendants to agree to revise
the Consent Decree in this manner.
On June 5, 2017, the Attorney General issued a policy, Prohibition
on Settlement Payments to Third Parties, which prohibits a settlement
that ``directs or provides for a payment or loan to any non-
governmental person or
[[Page 34978]]
entity that is not a party to the dispute[,]'' unless it is ``an
otherwise lawful payment . . . that . . . directly remedies the harm
that is sought to be redressed, including, for example, harm to the
environment. . . .'' This policy became effective upon issuance and
applies to, among other things, consent decrees entered into on behalf
of the United States. The original Consent Decree would have required
Defendants to pay a non-governmental third-party organization to carry
out the mitigation project. Questions exist as to whether this
mitigation project is consistent with the new policy.
The United States and Defendants also became aware that the U.S.
Government Accountability Office (``GAO'') is developing a legal
opinion regarding the original Consent Decree, focusing on the
mitigation project. On February 6, 2017, the United States received a
letter from counsel for Harley-Davidson asking the United States to
delay moving to enter the Consent Decree until GAO completed its
evaluation. The United States has been informed by GAO that development
of its legal opinion would likely not be concluded for many more
months. The mitigation project was also the subject of public comment
during the notice and comment period.
In light of these facts, the United States and Harley-Davidson
attempted to negotiate a substitute mitigation project, but were unable
to reach timely agreement on a suitable alternative. The United States
is mindful of the length of time this settlement has already been
pending and, in the interest of moving forward with the important
relief secured by the Consent Decree, has sought and received
Defendants' approval to modify the Decree to remove the mitigation
project.
The United States has decided on balance that proceeding now with
the substitute Consent Decree is in the public interest.
The publication of this notice opens a period for public comment on
the Consent Decree. Comments should be addressed to the Assistant
Attorney General, Environment and Natural Resources Division, and
should refer to United States v. Harley-Davidson, Inc., et al., D.J.
Ref. No. 90-5-2-1-11333. All comments must be submitted no later than
thirty (30) days after the publication date of this notice. Comments
may be submitted either by email or by mail:
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To submit comments: Send them to:
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By email............................ [email protected].
By mail............................. Assistant Attorney General, U.S.
DOJ-ENRD, P.O. Box 7611,
Washington, DC 20044-7611.
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During the public comment period, the Consent Decree may be
examined and downloaded at this Justice Department Web site: https://www.justice.gov/enrd/consent-decrees. We will provide a paper copy of
the Decree upon written request and payment of reproduction costs.
Please mail your request and payment to: Consent Decree Library, U.S.
DOJ-ENRD, P.O. Box 7611 Washington, DC 20044-7611.
Please enclose a check or money order for $9.50 (25 cents per page
reproduction cost) payable to the United States Treasury.
Karen Dworkin,
Deputy Section Chief, Environmental Enforcement Section, Environment
and Natural Resources Division.
[FR Doc. 2017-15780 Filed 7-26-17; 8:45 am]
BILLING CODE 4410-15-P